March 2010
The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ local Public Inspection Files by April 10, 2010, reflecting programming aired during the months of January, February and March 2010.

Statutory and Regulatory Requirements
As a result of the Children’s Television Act of 1990 and the FCC Rules adopted under the Act, full power and Class A television stations are required, among other things, to: (1) limit the amount of commercial matter aired during programs originally produced and broadcast for an audience of children 12 years of age and younger; and (2) air programming responsive to the educational and informational needs of children 16 years of age and younger.

For all full-power and Class A television stations, website addresses displayed during children’s programming or promotional material must comply with a four-part test or they will be counted against the commercial time limits. In addition, the contents of some websites whose addresses are displayed during programming or promotional material are subject to host-selling limitations. The revised definition of commercial matter will also go into effect and will now include promotions of television programs other than children’s educational/informational programming or other age-appropriate programming appearing on the same channel. Each of these requirements translates into the obligation to prepare supporting documents on a quarterly basis.

Specifically, stations must: (1) place one of four prescribed types of documentation demonstrating their compliance with the commercial limits in children’s television in their public inspection files; and (2) complete FCC Form 398, which requests information regarding the educational and informational programming aired for children 16 years of age and under. The Form 398 must be filed electronically with the FCC and placed in the public inspection file. The base forfeiture for noncompliance with FCC’s Children Television Programming Rule is $10,000.

In a recent series of decisions, the FCC issued $8,000 to $10,000 fines to three commercial television stations for failing to publicize the existence and location of their quarterly Children’s Television Programming Reports in violation of Section 73.3526(e)(11)(iii) of the Commission’s Rules. That provision states that “[l]icensees shall publicize in an appropriate manner the existence and location of these Reports.” In two of the three cases, the stations had failed to comply for almost all of their license term. The violation for the third case extended over the licensee’s entire license term. In all three cases, the licensees claimed that the forfeitures should be reduced or cancelled based on the fact that the FCC had not provided significant guidance on what it deems to be an appropriate manner of publication. In one of the cases, the FCC stated that publication solely through the station’s website was insufficient since it did not adequately apprise the public of the existence and location of the Reports. In that case, the FCC agreed that the licensee’s corrective action, an on-air notice broadcast weekly, complied with the rule. In another case, the FCC approved a licensee’s corrective actions where those actions included an on-air notice broadcast daily. In those two cases, the FCC reduced the initial forfeiture from $10,000 to $8,000. The licensee in the third case failed to undertake any remedial action and was assessed the full $10,000 forfeiture.

Noncommercial Educational Television Stations
Since noncommercial educational television stations are precluded from airing commercials, the commercial limitation rules do not apply to such stations. Accordingly, noncommercial television stations have no obligation to place commercial limits documentation in their public inspection files. Similarly, while noncommercial stations are required to air programming responsive to the educational and informational needs of children 16 years of age and under, they are exempt from the obligation to complete FCC Form 398. However, they must maintain records of their own in the event their performance is challenged at license renewal time. In the face of such a challenge, a noncommercial station will be required to have documentation readily available which demonstrates its efforts to meet the needs of children.

Commercial Television StationsCommercial Limitations. For commercial stations, proof of compliance with the commercial limitations must be placed in the public inspection file by the tenth day of the calendar quarter following the quarter during which the commercials were aired. This requirement is identical to the station’s Quarterly Issues/Programs List, although the commercialization documentation should be kept separately. Consequently, this proof of compliance should be placed in your public inspection file by April 10, 2010 (covering programming aired during the months of January, February and March, 2010).

Documentation to show that the station has been complying with this requirement can be maintained in several different forms:

Stations may, but are not obligated to, keep program logs in order to comply with the commercial limits rules. If the logs are kept to satisfy the documentation requirement, they must be placed in the station’s public inspection file. The logs should be reviewed by responsible station officials to be sure they reflect compliance with both the numerical and content limitations contained in the rules.

Tapes of children’s programs will also satisfy the rules, provided they are placed in the station’s public inspection file and are available for viewing by those who visit the station to examine the public inspection file.

A station may create lists of the number of commercial minutes per hour aired during identified children’s programs. The lists should be reviewed on a routine basis by responsible station officials to be sure they reflect compliance with both the numerical and content limitations contained in the rule.

The station and/or network/syndicator may certify that as a standard practice, it formats and airs identified children’s programs so as to comply with the statutory limit on commercial matter, and provide a detailed listing of any instances of noncompliance. Again, the certification should be reviewed on a routine basis by responsible station officials.

Regardless of which method a station uses to show its compliance with the commercial limits, it must identify the specific programs that it believes are subject to the rules, and must list any instances of noncompliance. It should be remembered that the commercial limits apply only to programs originally produced and broadcast primarily for an audience of children 12 and under.

Programming Requirements. Full power and Class A television stations must also file the current version of FCC Form 398 (which describes the station’s educational and informational programming for children 16 years of age and under) with the FCC and place it in the station’s public inspection file by the tenth day of the calendar quarter fol¬lowing the quarter to which it pertains.

To assist stations in identifying which programs qualify as “educational and informational” for children 16 years of age and younger and determining how much of that programming they must air to comply with the Act, the Commission adopted a definition of “core” educational and informational programming and license renewal processing guidelines that became effective on September 1, 1997. The FCC now defines “core programming” as television programming that has as a significant purpose serving the educational and informational needs of children 16 years old or younger, which is at least 30 minutes in length, aired weekly on a regular basis between 7:00 am and 10:00 pm. Each core program must be identified at the beginning of the airing of the program with the E/I symbol displayed throughout the program. In addition, information identifying each core program the station airs, including an indication of the target child audience, must be provided to publishers of program guides. The licensee must publicize the existence and location of the station’s children’s television reports. The FCC has not provided any specifics as to how this should be accomplished. We recommend that an announcement be placed on the station website and that on-air announcements be run periodically. Under the current license renewal processing guidelines, stations must air an average of at least three hours of “core programming” each week during the quarter in order to receive staff-level approval of the children’s programming portion of the station’s license renewal application. Stations that air “somewhat less” than an average of three hours per week of “core programming,” i.e., two and one-half hours, may still receive staff-level approval of their renewals if they demonstrate that they aired a package of programming that demonstrates a commitment at least equivalent to airing three hours of “core programming” per week. Stations failing to meet one of these guidelines will have their license renewal applications reviewed by the full Commission for compliance with the Act.

FCC Form 398 is designed to provide the public and the Commission with the information necessary to determine compliance with the license renewal processing guidelines. In Question 5, the report captures information regarding the preemption of children’s programming, and requires stations to create an addendum to the form called a “Preemption Report” which provides information on the following: (1) the date of each preemption; (2) if the program was rescheduled, the date and time the program was aired; (3) the reason for the preemption; and (4) whether promotional efforts were made to notify the public of the time and date that the rescheduled program would air.

Filing of FCC Form 398 with the FCC
Form 398 must be filed electronically on a quarterly basis at the same time that it is placed in the public inspection file. As a result, full power and Class A television stations must file a Form 398 electronically with the Commission by the April 10, 2010 deadline.

Preparation of the Children’s Programming Documentation
In preparing the necessary documentation to demonstrate compliance with the children’s television rules, a station should keep the following in mind:

FCC Form 398 and documentation concerning commercialization will be very important “evidence” of the station’s compliance with the Act when the station’s license renewal application is filed, and their preparation should be approached very carefully.

Accurate and complete records of what programs were used to discuss or treat specific children’s needs and issues and what programs aired were specifically designed for each particular age group should be preserved so that the job of completing the FCC Form 398 and creating documentation concerning commercialization is made easier.

A station should prepare all documentation in time for it to be placed in the public inspection file by the due date. If the deadline is not met, the station should give the true date when the information was placed in the file and explain its lateness. A station should avoid creating the appearance that it was timely filed when it was not.

These are only a few ideas as to how stations can make complying with the station’s children’s television obligations easier. Please do not hesitate to contact the Communications Practice Section for specific advice on compliance with these rules.

Class A Television Stations Only–Certification of Eligibility
Although not directly related to the requirement that Class A stations file children’s programming reports, it is important to note that Class A stations must certify that they continue to meet the FCC’s eligibility and service requirements for Class A television status under Section 73.6001 of the Commission’s rules. While the public inspection file rule, Section 73.3526(e)(17), does not specifically state when this certification should be prepared and placed in the public inspection file, we believe that since Section 73.6001 requires compliance on a quarterly basis, the prudent course for Class A television stations is to place that certification in the public inspection file on a quarterly basis as well.

Accordingly, we recommend that the certification be prepared and placed in the public inspection file at the same time that the proof of compliance with the commercial limitations and Form 398 are prepared and placed in the public inspection file.